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Sentencing Amendment (Fines without Recording Convictions) Bill 2016

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 16 November 2016

Tags: Sentencing, Justice, Working with Vulnerable People, Legislation

Ms WOODRUFF (Franklin) - Madam Speaker, I understand this bill is in response to the report commissioned by the former government from the Sentencing Advisory Council.  The letter requesting the report from the council sought advice on the implications of an offender of the court not recording a conviction following a finding of guilt, and whether a fine should be able to be imposed if a conviction is not recorded.  The Sentencing Advisory Council was asked to identify the purpose of a non-conviction sentence and provide advice on whether the legal consequences of a finding of guilt, where a conviction is not recorded, reconciled with this purpose. 

In that context it is worth noting that the recording a conviction is a punishment in itself.  It carries with it social condemnation and stigmatisation.  It also has long-term legal consequences including the potential loss of office, licence or right, restrictions on a person's employment and travel opportunities in some circumstances.  These repercussions can cause long-term detriment and extend far beyond the time of any sentence imposed by the court. 

The purpose of the sentencing option of not recording a conviction allows a magistrate to consider the circumstances of an individual case and to decide not to impose a conviction if they consider the adverse impacts of that conviction would have a substantial impact on the offender's economic or social wellbeing, or on their employment prospects. 

The Sentencing Advisory Council stresses that maintaining the distinction between guilt and conviction also has the potential to improve community safety through the rehabilitation of offenders.  Within this context, the Sentencing Advisory Council then recommended that section 7 of the Sentencing Act be amended to allow for a fine to be imposed without a conviction being recorded, as we have here.

The Greens recognise that a fine has many advantages, including its flexibility and its effectiveness as a sanction.  We understand that, unlike other jurisdictions, there has been no power in Tasmania for courts to impose a fine without recording a conviction.  There is a suggestion that, in some cases, fines are not being imposed because of the requirement to record a conviction. 

The Sentencing Advisory Council notes that some magistrates have expressed the view that they sometimes decide not to impose a fine when it would otherwise be appropriate because of the adverse impact a conviction would have on an offender's economic or employment prospects at that time, or at any point in the future in some situations.

It is also foreseeable that circumstances may arise where a magistrate imposes a conviction in circumstances where the consequences of that conviction are not of a scale commensurate with the seriousness of the crime.  The magistrate was of the view that not to record a conviction, without any further penalty, would be an even less desirable outcome.

We understand that the Chief Justice of the Supreme Court of Tasmania and the Chief Magistrate have supported the extension of section 7 of the Sentencing Act to allow for a fine to be imposed without a conviction being recorded. 

The Greens support this sentencing amendment.  The issue we have with this bill is not what it does but what it fails to do.  In relation to this matter, the Sentencing Advisory Council did not just examine the appropriateness of the imposition of a fine.  It also made a number of recommendations that acknowledge the legal and practical consequences for a finding of guilt, without a conviction, should be different to a finding of guilt where a conviction is recorded.  These recommendations reflected the purpose of a non-conviction sentence and the fact the legal and collateral consequences do not reconcile with that purpose at the moment. 

The Sentencing Advisory Council made it clear that its view was, as a general rule, non-conviction sentences should not be disclosed and should not appear on a person's criminal record for employment and licensing purposes.  This is consistent with the council's view that the discretion of the court not to record a conviction should have meaning for the employment and economic prospects of the offender.

The Sentencing Advisory Council made a large number of recommendations that went to making sure that greater restrictions are imposed on the disclosure of findings of guilt without a conviction.  These include that greater restrictions should be imposed on the disclosure of the finding of guilt without conviction than apply at the moment for a recorded conviction under the Annulled Convictions Act.  This is not to say that restrictions on disclosure should be absolute.  The Sentencing Advisory Council confirmed there will be appropriate but limited circumstances where the judicial objective of imposing a non-conviction sentence should give way to the competing goal of decision-makers about their need to have access to all relevant information with regard to criminal offending, including the findings of guilt without a recorded conviction in certain circumstances.

In that context the council made a number of recommendations around what they considered to be appropriate exemptions to the general rule that findings of guilt without conviction should not be disclosed.  These are largely for the purposes of law enforcement and court proceedings.

In making their recommendations, the council noted that the establishment of clear exemptions for when findings of guilt can be disclosed would mean that courts would have greater certainty in relation to the future implications for an offender of making an order that a conviction not be recorded.  It would also provide greater certainty for the community, including offenders and employers.  Those recommendations would increase consistency across different regulatory areas by providing guidance to the government department and the legislative drafters in the development of new legislation - all entirely consistent with the Government's stated view about bringing bills like this to the Parliament.  I look forward to hearing from the minister as to why these particular recommendations of the Sentencing Advisory Council have not been actioned.

The Greens also understand that, in the same report, the council considered the relationship between providing the court with the ability to impose a fine without recording a conviction and with section 20 of the Monetary, Penalties Enforcement Act 2005 where an offender is taken to be convicted of an offence if an infringement notice is paid, or if no election to have the matter decided by the court is made within 28 days.  The council unequivocally found that it was inappropriate for an infringement notice to result in a conviction.  The council was of the view that convictions should be reserved for judicial determination, given its significance as an act of social and legal stigma.  It should not be used for the infringement notice scheme, which is an administrative procedure.

The use of convictions in the Monetary Penalties Enforcement Act is not consistent with the significance that is attached to convictions as a sanction in its own right by the Sentencing Act.  The Sentencing Advisory Council recommended that the Monetary Penalties, Enforcement Act should be amended to remove the reference to deemed convictions in section 20 in relation to infringements.

They also recommended that the enforcement procedure under the act be grounded on the failure to pay the amount specified in the infringement notice within a specified time.  I would also appreciate hearing from the minister why that particular recommendation was not adopted by the Government.

In total, 36 recommendations were made by the Sentencing Advisory Council regarding reforms to non-conviction sentences.  It is hard to understand why the Government has only seen fit to move on a couple of them.  I would be interested to know the reasons for not acting on the ones we have mentioned. 

We commend empowering a magistrate to impose a fine without recording a conviction but this bill does not address the real concerns that were raised in the Sentencing Advisory Council's report.  We believe there is a need to reconcile the consequences that attach to a finding of guilt without a conviction being recorded with the purpose of a non-conviction sentence.  That is, to facilitate the offender's employment prospects with a view to rehabilitation and the need to impose a proportionate punishment for the offence.  It is a failure by the Government to adopt the council's total set of recommendations and will frustrate the judicial objectives of exercising the discretion of not recording a conviction.  I look forward to hearing the minister's comments about that.